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Less lethal is now more complicated

A 2011 controversy in the Village of Pinehurst, which did not concern golf, has created far-reaching collateral effects.

Photo by Tonya Sams (Cleveland.com).

Last month, the United States Court of Appeals for the Fourth Circuit handed down a decision that has given nearly every police agency in five states opportunity to review their use of force policies.  The case, Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, centered on the in-custody death of Ronald Armstrong as police tried to serve him with involuntary commitment papers.  In the wake of this decision, hundreds of police departments are rethinking how their officers can use tasers in the line of duty.

North Carolina General Statute § 122C-263 requires a law enforcement officer to take custody of a person being involuntarily committed and transport them to a hospital or other facility for evaluation.

Ronald Armstrong was a paranoid schizophrenic who also suffered from bipolar disorder.  On April 23, 2011, Armstrong had been off his medication for five days, and was poking holes through the skin of his leg to “let the air out.”  Concerned by his behavior, Armstrong’s sister, Ms. Lopez, convinced him to go to the local hospital for help.  Soon after arriving, Armstrong left the hospital.  After speaking with Ms. Lopez, the attending doctor deemed Armstrong to be a danger to himself and filed paperwork to have Armstrong involuntarily committed.  However, the doctor did not check the box declaring Armstrong a danger to others.

While the doctor was filing the paperwork, the Pinehurst Police Department was called.  North Carolina General Statute (“N.C.G.S.”) § 122C-263 requires a law enforcement officer to take custody of a person being involuntarily committed and transport them to a hospital or other facility for evaluation.  When Pinehurst Police arrived, Armstrong’s paperwork was not yet complete.  Officers spoke with Armstrong outside, where they found him wandering in and out of traffic in a nearby intersection.  Police convinced Armstrong to get out of traffic and talk to them by the side of the road.  Armstrong began to eat grass and dandelions, chew on gauze, and put lit cigarettes out on his tongue.

When police learned that Armstrong’s commitment paperwork was ready, they tried to take him into custody.  Armstrong, who stood 5’11” and weighed 262 pounds, immediately sat down and “wrapped himself around” a four-by-four stop sign post.  The three officers at the scene tried to pry Armstrong’s arms and legs loose from the post, but they were unsuccessful.  Ms. Lopez and two hospital security guards were present but were not, at this point, actively involved in the struggle.  After struggling with Armstrong for approximately thirty seconds, the ranking officer directed a subordinate to use his taser on Armstrong.

Under N.C.G.S. § 15A-401(d), police officers may use force to make an arrest or to take someone into custody. 

Under N.C.G.S. § 15A-401(d), police officers may use force to make an arrest or to take someone into custody.  This power, and the level of force allowed, is generally guided by an agency’s “use of force continuum.”  As explained by the National Institute of Justice, these policies “describe an escalating series of actions that [officers] may take to resolve a situation.”

There are multiple levels of force that are appropriate for any given situation.  In mere seconds, an officer may move from one part of the continuum to another.  The use-of-force continuum begins with officer presence where no force is used.  Next, officers can use verbalization, but still no physical force.  If that is still not enough, officers can use the empty-hand control, where officers use bodily force to gain control of a situation.  In worst-case scenarios, officers can use less-lethal methods or lethal force to gain control over the situation.  It all depends on if the suspect poses a serious threat to the officer or another individual.

In Armstrong’s case, officers had already used the first three levels of the continuum.  In deciding to use a taser, officers transitioned to the less-lethal level of the continuum.  Specifically, they used a conducted energy device (“CED”).

A taser is the most commonly recognized example of a CED.  Tasers have been used by law enforcement since the mid-1970s to subdue subjects who are resisting or combative.  Tasers can be used in either “probe” mode or “drive-stun” mode.

When used in the probe mode, the taser gives the officer the opportunity to maintain distance from an aggressive/threatening subject.  When an officer uses a taser in probe mode, two probes are launched from the taser and attach to the individual’s clothing or skin.  Wires connecting the probes to the taser will send a pulsating electrical charge.  When the probes hit their mark, the individual is typically disabled for the duration of the cycle, which lasts for up to five seconds.

The “drive-stun” mode is generally considered a “pain-compliance” technique, thus a lesser quantum of force than using the probes. Drive-stuns are most effective when aggressively applied to nerve bundles.  However, some subjects in combative situations apparently do not feel pain, so pain-compliance techniques may not work.

Numerous studies show that taser use results in less severe injuries to individuals and officers than many other use-of-force tools and tactics.  This is because the effects of a taser are gone once the cycle ends.

Pinehurst Police warned Armstrong that if he did not release the post, he would be tased.  Unfortunately, Armstrong ignored the warning.  Officers used the taser in drive-stun mode five times over a period of two minutes in an effort to dislodge Armstrong from the sign post.  These attempts not only failed to work, they seemed to increase Armstrong’s resistance.

Finally, after the two hospital security guards began to help the officers, Armstrong was uncoupled from the post and placed face-down on the ground.  During this struggle, Armstrong complained that he was being choked, although no witnesses at the scene reported seeing police use any chokeholds.  As officers handcuffed Armstrong, he continued to struggle.  After repeated attempts to kick at the officers, Armstrong’s feet were also shackled together.  According to witness accounts, this struggle lasted approximately 15-20 seconds.

After the struggle was over, the officers stood up to collect themselves, leaving Armstrong lying facedown on the ground.  Police realized that Armstrong was no longer moving.  When they checked him, they realized that he was not breathing.  Officers began CPR and Armstrong was taken to the emergency room via ambulance where he was pronounced dead.  This entire ordeal took just six and a half minutes.

In April 2013, Armstrong’s family filed an excessive force lawsuit in the Superior Court of Moore County, North Carolina under the provisions of 42 U.S.C. § 1983.

In April 2013, Armstrong’s family filed an excessive force lawsuit in the Superior Court of Moore County, North Carolina under 42 U.S.C. § 1983.  The next month, the case was removed to the United States District Court for the Middle District of North Carolina.  In January 2016, the district court granted summary judgment for the defendants, holding that it was “highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity.”

On appeal, the Fourth Circuit disagreed.  The Court looked at the totality of the circumstances, applying the “objective reasonableness” test of the Fourth Amendment to see “whether an objectively reasonable officer could have reasonably believed that the force employed was appropriate under the circumstances.”  The Court used the three “Graham factors” to make this determination: (1) the severity of the crime at issue, (2) the extent to which the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Regarding the first factor, the Court held that because Armstrong was not believed to have committed any crime, and was merely subjected to an involuntary commitment order, the force used was not reasonable.  Armstrong was not considered a danger to anyone but himself.  The Court stated that, “The government’s interest in seizing Armstrong was to prevent a mentally ill man from harming himself.  The justification for the seizure, therefore, does not vindicate any degree of force that risks substantial harm to the subject.”

Regarding the second and third factors, the Court held there was a justification for use of force, but only to a certain degree.  Recognizing that Armstrong was a danger to himself, as demonstrated by his actions while interacting with the police, the Court justified a degree of force “reasonably calculated to prevent Armstrong’s flight.”  The Court went on to observe that Armstrong was outnumbered and he was refusing to move which, as the Court noted, is the antithesis of flight.

Finally, the Court mentioned the short amount of time that police spent trying to pry Armstrong off the post before increasing their level of force.  The Court posited that, “A reasonable officer would have perceived a static stalemate with few, if any, exigencies – – not an immediate danger so severe that the officer must beget the exact harm the seizure was intended to avoid.”

The Court did grant some general deference to the judgment of the officers, stating the officers did not have a constitutional duty to stand idly by, hoping that Armstrong would change his mind and return to the hospital for treatment.  However, they concluded that the officers had “every tool needed to control and resolve the situation” without needed to resort to the use of a taser.  Ultimately, the Court ruled that,

Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force. . . [L]aw enforcement officers should now be on notice that such taser use violates the Fourth Amendment. (Emphasis added).

In the end, the Fourth Circuit affirmed the trial court’s grant of summary judgment for the Pinehurst Police Department on qualified immunity grounds.  Yet, in just one sentence, the Court limited the use of a valuable tool that has long been used by police to subdue combative and/or resisting suspects.  It remains to be seen whether courts will extend this holding to any passively resisting subject, not just the mentally ill posing a danger only to themselves.

There is a condition known in the scientific community as “positional asphyxia,” and its signs and symptoms mirror those seen by the Pinehurst Police Department. 

Unfortunately, the decision makes no mention of any forensic findings or post-mortem evaluation for the exact cause of Armstrong’s death.  Which begs the question: how did he die?  There is a condition known in the scientific community as “positional asphyxia,” and its signs and symptoms mirror those seen by the Pinehurst Police Department.

As with Armstrong, incidents of positional asphyxia usually involve some type of violent confrontation between an individual the police.  As with Armstrong, the individual frequently exhibits either a drug-induced state of agitation, or agitation commonly found in a mentally ill person.  As with Armstrong, the confrontation generally requires several officers to use less-lethal force techniques and equipment in order to subdue and restrain the person.  As with Armstrong, the individual may be restrained with only handcuffs, or leg restraints, or a combination of the two.  As with Armstrong, the once-combative person suddenly becomes tranquil, unresponsive, and requires medical intervention.  As with Armstrong, attempts to revive this person by police or medical personnel are unsuccessful, and the person is declared dead.  And, as with Armstrong, this all happens within a short amount of time after restraint.

So what actually killed Ronald Armstrong?  Was it the drive-stuns or something else, such as positional asphyxia?  The answer is not clear in the Fourth Circuit’s decision.  What is clear is that police officers within the Fourth Circuit’s jurisdiction have lost, at least to a certain degree, a valuable tool and must now rethink their approaches to use of force.

Clint Davis, Editor-in-Chief
About Clint Davis, Editor-in-Chief (15 Articles)
Clint Davis is a third year law student and serves as the Editor-in-Chief for the Campbell Law Observer. Before law school, Clint served as a police officer for seven and a half years in Williamston, N.C. He graduated from the University of Mount Olive in the Spring of 2013 with a degree in Criminal Justice and Criminology. During his 1L summer, Clint studied abroad at the University of Cambridge (UK) with a focus on the law of the European Union and comparative data privacy. He has worked for the Honorable Wanda G. Bryant at the North Carolina Court of Appeals, the Honorable Seth Edwards at the Martin County District Attorney's Office, and the Honorable Susan Doyle at the Johnston County District Attorney's Office. Clint is a member of the Campbell Moot Court Team as well as a Campbell Law Honor Court justice.
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